[Cite as Johnson v. Johnson,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

FRANK D. JOHNSON : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. Sheila G. Farmer : Hon. Craig R. Baldwin, J. -vs- : : KELLY A. JOHNSON : Case No. 2015CA00076 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Domestic Relations Divison, Case No. 2014- DR-00932

JUDGMENT: Affirmed

DATE OF JUDGMENT: November 17, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

TIMOTHY P. ASSAF JEFFREY V. HAWKINS 12 East Exchange Street Slater & Zurz, LLP Fifth Floor One Cascade Plaza, Suite 2210 Akron, Ohio 44308 Akron, Ohio 44308-1135 Stark County, Case No. 2015CA00076 2

Baldwin, J.

{¶1} Defendant-appellant Kelly Johnson appeals from the March 9, 2015 Final

Entry Decree of Divorce and the March 30, 2015 Judgment Entry of the Stark County

Court of Common Pleas, Domestic Relations Division, denying her Motion for New Trial.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant Kelly Johnson and appellee Frank Johnson were married on

July 22, 2003. Two children were born as issue of such marriage.

{¶3} On September 3, 2014, appellee filed a complaint for divorce against

appellant. Appellant filed an answer and counterclaim on October 8, 2014. As

memorialized in a Judgment Entry filed on January 14, 2015, a trial was scheduled for

February 25, 2015 at 9:00 a.m.

{¶4} Appellee, on February 24, 2015, filed a Motion for Sanctions against

appellant. Appellee, in his motion, asked that appellant be sanctioned for failing to

comply with an Order issued by the trial court on February 18, 2015 requiring her to

provide answers to appellee’s interrogatories and documents in response to appellee’s

Request for Production of Documents.

{¶5} Neither appellant nor her counsel appeared for trial. The trial court had

received a message from appellant’s counsel indicating that he had automobile

mechanical problems the night prior to trial and was unable to secure transportation to

the trial. Appellant’s counsel further requested that appellee’s counsel contact him

which did occur. Despite appellant’s lack of appearance, the trial court directed appellee

to proceed with the trial because no request for continuance had been filed and no

excusable neglect had been shown by appellant. Stark County, Case No. 2015CA00076 3

{¶6} A Final Entry Decree of Divorce was filed on March 9, 2015. On March 20,

2015, appellant filed a Motion for New Trial Pursuant to Civil Rule 59 supported by the

affidavit of her counsel. Appellant, in her motion, alleged that her trial counsel was

unable to appear for trial due to car trouble and that appellant was informed by her

counsel not to appear for trial for such reason. The trial court denied appellant’s motion

as memorialized in a Judgment Entry filed on March 30, 2015. Pursuant to a Judgment

Entry file on April 13, 2015, the trial court denied appellant’s request for findings of fact

and conclusions of law on the basis that “Civil Rule 52 is not applicable to a Rule 59

ruling.”

{¶7} Appellant now raises the following assignments of error on appeal:

{¶8} I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION

WHEN THE TRIAL COURT PROCEEDED WITH TRIAL ON THE MERTIS (SIC) WHEN

THE COURT WAS GIVEN AMPLE NOTIFICATION THAT COUNSEL FOR

DEFENDANT/APPELLANT WAS UNABLE TO APPEAR AT TRIAL.

{¶9} II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION

WHEN THE TRIAL COURT OVERRULED DEFENDANT/APPELLANT’S TIMELY

APPLICATION FOR A NEW TRIAL PURSUANT TO CIVIL RULE 59.

{¶10} III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION

WHEN IT DENIED DEFENDANT/APPELLANT’S TIMELY REQUEST FOR FINDINGS

OF FACT AND CONCLUSIONS OF LAW PURSUANT TO CIVIL RULE 52.

{¶11} IV. THE TRIAL COURT ERRED AND DENIED THE

DEFENDANT/APPELLANT HER DUE PROCESS AS GUARANTEED UNDER BOTH

THE UNITED STATES AND OHIO CONSTITUTION BY PROCEEDING WITH TRIAL Stark County, Case No. 2015CA00076 4

WITHOUT ALLOWING THE DEFENDANT TO BE REPRESENTED BY COUNSEL

AND BY ALLOWING THE DEFENDANT/APPELLANT TO BE HEARD AT TRIAL.

I, II, IV

{¶12} Appellant, in her first assignment of error, argues that the trial court erred

in proceeding to a trial on the merits when the court was given ample notification that

appellant’s counsel was unable to appear for trial. In her second assignment of error,

appellant contends that the trial court erred in overruling her Motion for New Trial.

Appellant, in her fourth assignment of error, maintains that her due process rights were

violated when the trial court proceeded with the trial.

{¶13} Appellant, in the case sub judice, did not request a continuance of the trial.

The docket does not show that a request for a continuance was ever filed. Moreover,

the grant or denial of a continuance is a matter entrusted to the broad, sound discretion

of the trial court. Polaris Ventures IV, Ltd. v. Silverman, 5th Dist. Delaware No. 2005

CAE 11 0080, 2006–Ohio–4138, ¶ 14, citing State v. Unger,

,

(1981). In order to find an abuse of discretion, we must find the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore,

,

(1983).

To constitute a sufficient ground for a continuance because of the absence of a party, it

must appear that: the party's absence is unavoidable, rather than voluntary; the party's

presence at trial is necessary; the continuance is made in good faith; and, the party will

probably be able to attend court at some reasonable future time. State ex rel. Buck v.

McCabe,

,

(1942), citing 17 Corpus Juris Stark County, Case No. 2015CA00076 5

Secundum, Continuances, p. 210, § 27. A litigant does not have a right to unreasonably

delay a trial. See Hartt v. Munobe,

, 1993–Ohio–177,

.

{¶14} In the case sub judice, the trial court indicated on the record that it had no

motion before it but that its administrative assistant had received a call from appellant’s

counsel indicating that he had car trouble the night before and that he was unable to

obtain a rental vehicle that morning. The trial court stated it “presume[d] he was asking

for a continuance but I have no motion to that affect.” Trial Transcript at 3. Appellee’s

counsel stated that they were able to proceed and the case had been “effectively

pending in the Court for uh … about fourteen months” since the case was initially filed in

early 2014 and had been voluntarily dismissed. Trial Transcript at 5.

{¶15} We find that the trial court did not err in proceeding with the trial because

appellant’s absence was not unavoidable and appellant did not request a continuance.

With respect to due process, we note that, in civil proceedings, due process requires

notice and a meaningful opportunity to be heard. State v. Hayden,

,

2002–Ohio–4169,

. We find that reasonable notice and opportunity to be

heard were afforded to appellant under the facts and circumstances presented, and that

the trial court did not err or abuse its discretion in declining to continue or reset the trial

to a later date.

{¶16} Appellant, as is stated above, also argues that the trial court erred in

denying her Motion for a New Trial pursuant to Civ.R. 59 (A)(1) or (3). Civ.R. 59(A)

states, in relevant part, as follows: “A new trial may be granted to all or any of the

parties and on all or part of the issues upon any of the following grounds:(1) Irregularity

in the proceedings of the court, jury, magistrate, or prevailing party, or any order of the Stark County, Case No. 2015CA00076 6

court or magistrate, or abuse of discretion, by which an aggrieved party was prevented

from having a fair trial;…. (3) Accident or surprise which ordinary prudence could not

have guarded against;…”

{¶17} The decision to grant or deny a motion for a new trial pursuant to Civ.R.

59 rests in the sound discretion of the trial court, and will not be reversed absent an

abuse of that discretion. Sharp v. Norfolk & W. Ry. Co.,

, 1995-

Ohio-224,

. An abuse of discretion connotes more than an error of law

or judgment; rather, it implies that the trial court's attitude was unreasonable,

unconscionable, or arbitrary.

{¶18} Appellant argues that the “irregularity and accident or surprise was the

inability of trial counsel for the Defendant/Appellant to appear for trial and the fact that

that Court,…proceeded to trial on the merits…” However, for the reasons set forth

above, we find that the trial court did not abuse its discretion in denying appellant’s

motion because there was no irregularity or accident or surprise.

{¶19} Appellant’s first, second and fourth assignments of error are, therefore,

overruled.

III

{¶20} Appellant, in her third assignment of error, argues that the trial court erred

in denying her request for findings of fact and conclusions of law pursuant to Civ. R. 52

with respect to the denial of her Motion for New Trial pursuant to Civ.R. 59.

{¶21} As an initial matter, we note that the docket does not indicate that such a

request had ever been filed. However, we further note that the trial court, pursuant to a Stark County, Case No. 2015CA00076 7

Judgment Entry filed on April 13, 2015, denied such request and that appellee, on the

same date, filed a brief in opposition to appellant’s request.

{¶22} Civ.R. 52 states, in relevant part, as follows: “When questions of fact are

tried by the court without a jury, judgment may be general for the prevailing party unless

one of the parties in writing requests otherwise before the entry of judgment pursuant to

Civ. R. 58, or not later than seven days after the party filing the request has been given

notice of the court's announcement of its decision, whichever is later, in which case, the

court shall state in writing the findings of fact found separately from the conclusions of

law. …” “Pursuant to Civil Rule 52, the trial court is only required to provide findings of

fact or conclusions of law when “questions of fact are tried by the court without a jury.’ “

Byrd v. Frush, 5th Dist. Licking No. 13–CA–10,

at paragraph 31. The

denial of a Motion for a New Trial does not qualify. Moreover, Civ.R. 59(D) only requires

that the trial court specify the grounds for new trial when a Motion for New Trial is

granted, not when it is denied.

{¶23} Appellant’s third assignment of error is, therefore, denied. Stark County, Case No. 2015CA00076 8

{¶24} Accordingly, the judgment of the Stark County Court of Common Pleas,

Domestic Relations Division, is affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Farmer, J. concur.